Adcock v. State, A--14276

• Decision Date: 31 July 1968
• Docket Number: No. A--14276,A--14276
• Citation: 444 P.2d 242
• Parties: Thomas ADCOCK, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 242

444 P.2d 242

Thomas ADCOCK, Plaintiff in Error, v. The STATE of Oklahoma, Defendant in Error.

No. A--14276.

Court of Criminal Appeals of Oklahoma.

July 31, 1968.

An appeal from the District Court of McIntosh County; Robert J. Bell, judge.

R. A. Pyle, Eufaula, for plaintiff in error.

G. T. Blankenship, Atty. Gen., Hugh H. Collum, Asst. Atty. Gen., for defendant in error.

MEMORANDUM OPINION

BUSSEY, Judge.

Thomas Adcock, hereinafter referred to as defendant, was charged by information with the crime of Burglary in the Second Degree After Former Conviction of a Felony in the District Court of McIntosh County, Oklahoma. He was tried by a jury and convicted of the crime of Attempted Burglary in the Second Degree After Former Conviction of a Felony and from the judgment and sentence rendered against him, a timely appeal has been perfected to this Court.

On appeal it is first contended that the trial court erred in admitting into evidence a car tool found near the scene of the burglary in the path taken by the defendant when he unsuccessfully attempted to flee from the scene. Under this assignment of error the defendant contends:

'* * * There is nothing about this tool that makes it only a burglary tool, it is found around many service stations like the one Mr. Williams runs at Onapa, Oklahoma. It was not found in the possession of the defendant, in fact, it was not found at all until the next morning. * * * It should not have been admitted into evidence, there was no testimony which positively connected this defendant with this particular tool.'

As authority the defendant cites Jones v. State, 181 Ark. 336, 25 S.W.2d 752:

'That burglary tools may be introduced and received into evidence only after proof is made connecting the tools with the defendant or the crime.'

It is the State's position that the authority relied on by the defendant supports the admission of the car tool in evidence since there was testimony linking it with the attempted burglary in that the tool matched with pry marks found on the molding of the door of the building attempted to be burglarized. The general rule on establishing the relevancy and materiality of real evidence such as this tool has been stated in 2 Wharton's Criminal Evidence (12th edition) § 675, as follows:

'In order to establish the relevance and materiality of real evidence, it must in some manner be connected with the perpetrator of victim of the crime Or with the crime itself. It follows that in order to justify the admission of this evidence, its identity must be shown to be that of the article or substance which it purports to be and that the character of such article or substance must be as purported.

It is not necessary that such identification should positively and indisputably describe and relate to such evidence. If a question of fact as to the connection of the articles sought to be admitted with the defendant or the crime is raised, the evidence should be admitted for the determination of the jury. The lack of positive identification in such a case affects the weight of the article or substance as evidence, rather than its admissibility.

Thus, a cap, found near the scene of the crime, which the state contended was worn...